In
relation to D, the applicant proposes that he be awarded custody of D so that D
is transferred from Hartman House in Zimbabwe to an unmentioned private school
in Botswana where the applicant alleges the curriculum is similar to the
Zimbabwean one. No evidence to support this is provided. The applicant alleges
that his ...
In
relation to D, the applicant proposes that he be awarded custody of D so that D
is transferred from Hartman House in Zimbabwe to an unmentioned private school
in Botswana where the applicant alleges the curriculum is similar to the
Zimbabwean one. No evidence to support this is provided. The applicant alleges
that his employers would also subsidise D's education if he is in Botswana….,.
It
is trite law that in an application for variation of a custody order the party
seeking such variation must show good cause for seeking such an order. See Hackim v Hackim 1988 (2) ZLR
61 (S). It is also important to note in dealing with the question of custody
of minor children the court is always guided by the best interests of the
children. In the case of Makuni v
Makuni 2001 (1) ZLR 189 (H)…, GOWORA J…,
has this to say on the what to consider in such an application;
“In
approaching the problem of this nature, the court is of course primarily
concerned with the welfare of the children; that is the paramount
consideration. Just as in custody cases, so also in the dispute arising
out of custody order, the welfare of the children is the predominate consideration
which should weigh with the court. Shazin v
Laufer 1968 (4) SA 657 at 662 G-H.”
In
the case of Galante v Galante (3) 2002 (2) ZLR 408 (H) SMITH J…, citing the
celebrated case of McCall v McCall 1994 (3) SA 201…, outlined in very useful
detail what constitutes the best interests of the child.
What
is also important to consider or appreciate is that in cases of this nature
involving custody disputes the court is primarily concerned with the best
interests of the minor child and not the parents. In the case of Jere v Chitsunge 2003 (1)
ZLR 116 (H)…, CHEDA J had this to say;
“The
interest of the child means therefore that the interests of the parents are
secondary. The common practice is that, if all else is equal, especially
if the child is young, that the mother is likely to be given custody. The
following, in my view, is what the court should take into consideration in
determining the interest of the child. The list is not exhaustive;
1.
The fitness or otherwise of the custodian parent.
2.
The age of the child.
3.
The sex of the child.
4.
The length of the time the child has lived with either parent or her relative.
5.
The degree of emotional stress which the child will suffer in the event of the
child being separated from either parent.
6.
Any risk of ill treatment by either party or member of his or her household.”
In
the case of Domboka v Madhamu 2004 (2) ZLR 287 (H)…, MAKARAU J..., dealt
with the question of the burden of proof in cases involving variation of
custody orders. The learned Judge had this to say;
“…,.
In cases involving the custody of minor children, the court must approach the
issue of onus from a broad and wide angle. The onus is discharged if, at
the end of the day, the court is satisfied that the best interests of the minor
children dictate that it makes the order sought. The learned Judge of
appeal cautioned against magnifying the onus on the parent seeking variation
but maintained the best interest of the minor children should remain paramount.
It
appears to me that while the accepted position is that the parent seeking
variation of the custody order has to show, on a balance of probabilities, that
it is in the best interest of the children that the existing order be varied,
in cases where variation is sought on the basis of changed circumstances, the
onus is to be discharged on a two-prong attack. In my view, such a parent
must show that it is not in the best interest of the children that they remain
in the custody of the custodian parent, and, further, that it is the best interest
of the children that the custody is awarded to them. It is insufficient, in my
view, to merely show a change of circumstances for the worse on the part of the
custodian parent. It is not difficult to envisage a situation where although
the circumstances of the custodian parent have deteriorated from the date of
the granting of the order, the court still finds that it is in the best
interests of the children that they remain in the custody of the parent whose
fortunes are waning. It is the role of the court to examine the
circumstances of both parents to establish where the best interests of the
minor children lie.”
I
now proceed to apply these principles to the facts of this case.
I
have no doubt in my mind that the tone of this application is all about the
applicant's interests rather than the minor children's interests which remain
in the distant horizon.
The
applicant's case is that the introduction of the multi-currency regime in
Zimbabwe, which occurred at the beginning of 2009, constitutes a change of
circumstances warranting the variation of the custody order in respect of D.
This change of custody is motivated by the need to cut the bill on school fees
by the applicant. The applicant has totally failed to consider the
interests of D. There is virtually nothing in the founding affidavit that
shows that his mind, at some point, unconsciously drifted towards the welfare
of the minor children….,.
Even
if I was to assume that there are indeed changed circumstances in this case,
the applicant has not shown why it is in the best interests of D to remove him
from the custody of the respondent and place him in the applicant's
custody. The fact that the applicant has since remarried or that he has a
moral duty to support his mother are not relevant factors to be considered in
assessing D's best interests. D is a 10 year old boy who has been in the
respondent's custody since the granting of the divorce order. He is now used to
staying with his sibling and the respondent. He is attending school in
Zimbabwe. There is nothing in the applicant's papers to show how it is in D's
interests, at his age, to uproot him from the environment he is acclimatised to
and place him in a foreign country, in a different school environment and where
he would be experiencing stepmother parenting. The applicant has not
considered at all the degree of emotional stress such a change of environment
may cause to D. The applicant has not shown that D would be compatible with the
stepmother nor has any effort made to assessment of possible risk of the ill
treatment by the stepmother. There is even no effort to explain clearly
the nature of the environment this ten year old is supposed to live in
Botswana. This court would be failing in its duty as the upper guardian of
all minor children to grant the order sought in respect of D on the basis of
the facts placed before the court by the applicant….,.
It
is my considered view that the applicant has not made a case for the relief he
seeks. The applicant has totally failed to lay the basis for the relief sought
and has unnecessarily put the respondent out of pocket. An appropriate order of
costs as prayed for by the respondent should be granted.
Accordingly,
it is ordered that;
1.
The application be and is hereby dismissed.
2.
The applicant is to pay the costs on a client and legal practitioner scale.
